PIERCE v. COLVIN

Filing 20

ORDER - The Commissioner's Motion to Dismiss is GRANTED and this action shall be dismissed without prejudice. Plaintiff Laurel G. Pierce's Update Motion is DENIED. The Court shall enter judgment accordingly.Signed by Judge Larry J. McKinney on 12/20/2016. Copy sent to Plaintiff via US Mail. (LDH)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

LAUREL G. PIERCE,
Plaintiff,
vs.
CAROLYN W. COLVIN Acting
Commissioner of the Social Security
Administration,
Defendant.

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No. 1:16-cv-00609-LJM-MJD

ORDER ON DEFENDANT’S MOTION TO DISMISS
Defendant Carolyn W. Colvin, Acting Commissioner of the Social Security
Administration (the “Commissioner”) has moved to dismiss Plaintiff Laurel G. Pierce’s
(“Pierce’s”) Complaint asserting that the Court lacks jurisdiction over Pierce’s claims
under both 42 U.S.C. §405(g) and the Federal Torts Claims Act (“FTCA”) and/or Pierce
failed to exhaust her administrative remedies as required. Dkt. No. 10. Pierce, acting pro
se, argues that she did not need to exhaust any administrative remedies under the FTCA
because the Social Security Administration (“SSA”) was well aware of the issues involved
in her disability benefits claims. Moreover, in a document entitled “Update and Motion to
Proceed with Claim” (“Update Motion”), Pierce states that she filed a claim under the
FTCA, which was denied because the statute of limitations had run and because the
issues were not properly brought under the FTCA, rather, they should be decided by the
SSA and the appeals process associated therewith. Dkt. No. 18.

I. FACTUAL & PROCEDURAL BACKGROUND
Pierce alleges that in 2006 she sought Disability Insurance Benefits (“DIB”) and
Supplemental Security Income (“SSI”). Compl. at 1. After seeking judicial review of the
SSA’s denial of benefits in 2010, see Cause No. 1:10-cv-01451-SEB-MJD, her case was
remanded to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g). See
Pierce v. Comm’r of Social Security, 1:10-cv-01451-SEB-MJD.

The Commissioner

awarded Pierce benefits in 2015. Compl. at 1. Pierce now alleges that the 9-year process
seeking benefits caused her damages, “unnecessary hardship,” and harm to her
“emotional and mental health.” Comp. at 1-3. On March 17, 2016, Pierce filed the instant
Complaint in which, in essence, she seeks damages for the period during which she
sought benefits from the SSA. Compl. at 2-3. In her Update Motion, Pierce explains that
she filed a Tort claim after the Commissioner filed her Motion to Dismiss, which was
denied; therefore, Pierce asserts, she has exhausted her administrative remedies and the
case should proceed.
II. DISCUSSION
The Commissioner maintains that the Court lacks subject matter jurisdiction over
Pierce’s claims because Congress did not waive sovereign immunity for claims against
the SSA. Dkt. No. 11 at 1 n.1. In the alternative and under Seventh Circuit precedent,
the Commissioner seeks dismissal pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure (“Rule 12(b)(6)”) for failure to exhaust administrative remedies. Id. (citing
Collins v. United States, 564 F.3d 833, 838 (7th Cir. 2008): Frey v. EPA, 270 F.3d 1129,

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1135 (7th Cir. 2001)). In light of Seventh Circuit precedent, the Court uses the Rule
12(b)(6) standard here. 1
Rule 12(b)(6) permits the dismissal of a claim for failure to state a claim upon which
relief can be granted in the pleadings. A pleading must contain a “short and plain
statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.
8(a)(2). Detailed factual allegations are not required, but a plaintiff’s complaint may not
merely state “an unadorned, the defendant-unlawfully-harmed-me accusation.” Iqbal,
556 U.S. at 678. Rather, “a complaint must contain sufficient factual matter … to ‘state a
claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp v. Twombly,
550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged[,]” not when the plaintiff only raises a “sheer possibility that the
defendant has acted unlawfully.” Id. “[T]he height of the pleading requirement is relative
to the circumstances[,]” Cooney v. Rossiter, 583 F.3d 967, 971 (7th Cir. 2009), and
“[d]etermining the plausibility of a claim is a context-specific task that requires [the Court]
to draw on [its] judicial experience and common sense.” Brown v. JP Morgan Chase
Bank, 334 Fed. Appx. 758, 759 (7th Cir. 2009).
The Court concludes that Pierce failed to exhaust her administrative remedies prior
to filing suit; therefore, her Complaint must be dismissed. The law is clear that any claim
arising under the Social Security Act must be brought first to the Commissioner. See 42

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To the extent that the parties rely on matters outside the record, the Court did not
need to consider them; therefore, it has not converted the motion to one for summary
judgment.
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U.S.C. §§ 405(g) & (h). Pierce makes no allegation here that she filed her claim with the
Commissioner.
Even if Pierce had brought such a claim to the Commissioner, § 405(g) does not
contemplate money damages for any delay in awarding benefits under DIB and SSI,
rather Pierce is only entitled to back payment of damages wrongfully withheld. See Marks
v. U.S. Social Sec. Admin., 906 F. Supp. 1017, 1022 (E.D. Va. 1995), aff’d in part and
vac’d in aprt on other grnds.; Ostroff v. State of Florida, 554 F. Supp. 347, 352 (M.D. Fla.
1983). Therefore, Pierce should have brought any allegation that she was entitled to
more benefits, or back payment of benefits, to the Commissioner first.
Finally, to the extent that Pierce seeks relief under the FTCA, 42 U.S.C. § 405(h)
seems to specifically precludes such avenue when the claim arises out of a Social
Security dispute. 42 U.S.C. § 405(h) states, “No action against the United States, the
Commissioner of Social Security or any officer or employee thereof shall be brought under
section . . . 1346 of Title 28, United States Code, to recover on any claim arising under
this subchapter.” See also Tallman v. Reagan, 846 F.2d 494, 495 (8th Cir. 1988) (“The
Social Security Act, 42 U.S.C. § 405(h), precludes a FTCA action ‘to recover on any claim
arising under this subchapter.’”); Carter v. Social Sec. Field Office, No. 02 C. 5526, 2004
WL 609316, at *4 (N.D. Ill. Mar. 22, 2004) (stating that any FTCA claim would be barred
because “the Social Security Act precludes . . . an action for Title II benefits under the
FTCA”).
Even if Pierce could properly bring claims of negligence and/or negligent infliction
of emotional distress against the Commissioner under the FTCA, she admits in her
Update Motion, which the Court considered in the nature of a surreply, that she filed a tort

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claim after institution of this lawsuit. See Dkt. No. 18 at 1 & 3 (stating, in part, that “ALL
administrative efforts have NOW been exhausted” (emphasis in original)).

It is a

prerequisite to filing a complaint in this Court that a FTCA claimant present the claim to
the agency first and receive a denial. See 28 U.S.C. § 2675(a) (“An action shall not be
instituted . . . unless the claimant shall have first presented the claim to the appropriate
Federal agency and his claim shall have been finally denied by the agency in writing.”).
This requirement may not be waived. See McNeil v. United States, 508 U.S. 106, 11112 (1993) (concluding that Congress intended for claimants to completely exhaust
administrative remedies prior to initiating suit). Moreover, this requirement cannot be
overcome by amendment of the Complaint. See Duplan v. Harper, 188 F.3d 1195, 1199
(10th Cir. 1999) (concluding that to allow suits under the FTCA to proceed by amendment
“would render the exhaustion requirement meaningless”); Waters v. Anonymous Hosp.
A, No. 1:10-cv-00983-LJM-MDJ, 2011 WL 1458161, at *4 (S.D. Ind. Apr. 14, 2011).
Accordingly, the Commissioner’s Motion to Dismiss is GRANTED and this action
shall be dismissed without prejudice.

Plaintiff Laurel G. Pierce’s Update Motion is

DENIED. The Court shall enter judgment accordingly.
IT IS SO ORDERED this 20th day of December, 2016.

________________________________
LARRY J. McKINNEY, JUDGE
United States District Court
Southern District of Indiana

Distribution:
LAUREL G. PIERCE
510 W. Hinshaw Dr
Niveveh, IN 46164
Kathryn E. Olivier
UNITED STATES ATTORNEY'S OFFICE
[e-mail]

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